Sep 18, 2008

" WHO ' S ON FIRST? "

Those exact words were spoken by Mr Charney, lead counsel for the government's team, at the Ontario Court of Appeal yesterday. This followed an argument that was a jaw-dropping adventure in obfuscation. If his head felt anything like mine during his bafflegabbery, I'm surprised it didn't explode. His ears became increasingly red while he tried to evade direct questions from the bench, which was funny to watch. I'm really tired of the back of that guy's head, I tell you what.

He's the one who announced that there's no such thing as a 'pit bull' at our Remedy hearing in July, 2007.

He also said yesterday that he didn't like his own argument - on that point we can agree.

The day before, he gave us another great zinger: "We're making this up as we go along." No kidding.

He is a good lawyer, they say, and very senior at the Attorney General's office. Your tax dollars at work.

Charney shouldn't tease, though. I thought he was prepared to come clean and admit he's been working for the wrong side all along but it was just a momentary lapse. It must be tough to have to defend a law that is based on propaganda.

Our evidence and basic arguments have not changed. You can view my original notes from 2006 starting with this post, Day One. At the top you'll see a link to Day Three and at that post, to Day Two. They are out of order.

We pointed out various ways in which the Superior Court judge had erred and argued technicalities and subtleties as well as broad-brush principles in an eloquent, clear and persuasive manner. Let's hope it was enough.

*

The Court of Appeal is quite different from Superior Court.

There are three judges and they ask questions and chat back and forth. It's a very pleasant atmosphere and oddly, seems more casual than the lower court.

The government's schtick doesn't bug me as much as it once did and not just because I'm totally used to hearing it. It's because it sounds almost quaint now that most of it is so outdated.

They keep on about 'pit bulls' attacking without warning signs, doing more damage, being dangerous, etc - all the mythology that was debunked four years ago here in Ontario by people who knew what they were talking about. To hear it repeated this week was a trip down bad memory lane.

Think of what's changed since this Bryant nonsense started in late 2004.

Holland repealed its 15-year-old ban.

Lower Saxony changed its law when it was found that 'pit bulls' were the same as other dogs.

More studies have been done into canine behaviour. More bite studies have been done. More data have been collected.

The Vick dogs - what a great thing that was for us because it hit the mainstream media, hard.

We had the Ontario law found partly unconsitutional.

Many places have rejected banning dogs and have brought in generic laws instead.

A lot more has happened that's affected public opinion regarding 'pit bulls' in North America as well as the body of evidence.

We want the whole section of DOLA struck down, not just bits and pieces. Our wonderful lawyers, Clayton Ruby and Breese Davies, explained all that and made many excellent points.

The justices were paying atttention and asking the right questions. The government lawyers were typically disorganized and weren't answering direct questions from the bench. I doubt that will win them many Brownie points - at least I hope not.

All in all, I feel pretty good. There are always times during these hearings when I feel like butting in, saying "No, that's not true and I have the scientific papers to prove it" or "What's your source for that statement? The Star?"

I will try to post a few more details about what happened later but I wanted to put a bit of a summary up.

The bench reserved judgement, which I see as a good thing. Usually, they give their decision right after the arguments have finished. In about 10 - 15% of cases, they reserve it.

We have no idea when that decision might come out.

In the meantime, contrary to the nonsense in the Toronto Star, I feel as confident as possible. We've done what we can to fight this law. Whether it's been good enough remains to be seen.

Since we're Canadians, we're never very confident. It's a national trait - believing that every job could be done better. Whatever.

When a law is based on a lie and then irrational and circular rationalizations are presented ex post facto as 'reasons', you have to believe it won't stand up to judicial scrutiny once the facts are made available. To do otherwise would be to lose faith in the justice system.

I'm not quite ready to lose faith in the Court - since it's the only thing that can protect me from the government.

When I know more or can put together some notes, I'll post further info.

Comments

Sitting in the appeals court room was new to me. I had a court case once and although an appeal was started, it was not followed through on. I was shocked however when I heard one of the three judges state, "the law does not have to be wise". Well, it the case of Ontarios BSL, there was no question that it is not. However, I truly believe that is SHOULD be. For if it is not wise, then what is it? It was also very difficult to hear that pit bull owners are drug addicts and criminals. I looked around THAT court room at the people who were taking the time to attend these proceedings and saw a range of people, 99% of them, supporting the appeal and what I saw were a group of responsible citizens and dog owners of all ages. I hope the judges were seeing that also when that statement was being made.
I found it very difficult to listen to the descriptions given of these dogs as I have only known them to be wonderful creatures. Loyal, loving, giving, obedient and desiring to do the will of their owners. However, I guess that is the trouble and why we have to defend them in the 2nd highest court in Canada.
I am truly praying tand hoping hat although the law does not have to be wise, it will be.

Once youve sat through their bulls**t a few times, you become desensitized to it.
You have to understand the way words are used in this special area of law, which uses a specialized vocabulary.
The arguments are just summaries of whats in the evidence. Everything is in there and when they refer to it, the lightbulb should come on.
We know were going to the Supreme Court anyway, if theyll hear our case, so while it would be great to get a favourable decision at the Court of Appeal, it doesnt mean this is over - unless our selfless represenatives and noble defenders of justice and equality decide to not appeal a win for us.
Since the best predictor of future behaviour is past behaviour, I dont expect that to happen.
I really didnt want McGuinty and his band of minions re-elected and not only because of this issue. I think they are unfit and one of the worst governments in the history of Ontario. I guess 46% of 50% of eligible voters didnt get that. Maybe if they started paying attention and insisting on ethical performance, we wouldnt have this inadequate group sitting on the government side of the House.

Re the first time around, what was the issue; and this time, what was the issue. The court remarkably sounds like the US except you have the burden of proof right? So does your burden have to be in form of expert testimony? Were any supporting briefs filed (if you have that in Canada)

What baffles me is not the gubbermint bull$shit...after all, these lawyers get their paycheques from the government...its the fact that mainstream media is SO DAMMED STUPID.
They havent caught on to the fact that when a law without foundation in fact or science is used to legislate law-abiding people into second-class citizenship, there should be freakin riots in the streets. The average Onscarian is a stupid cow being led to slaughter, complacently mooing all the way.

Anonymous: The issues are pretty obvious if you read my notes from the original hearings in May, 2006 and also follow the link to Steves notes in my post.
Im not sure what you mean by burden of proof. Our initial argument (substantiated by massive amounts of evidence including case law, expert affidavits, scientific papers, etc, etc) was that the law was overbroad, vague, and violated the right to trial fairness among other things.
Overbroad: Since there are few of the dogs actually named as purebred in the law living in Ontario, a larger number of dogs fall into the periphery than the core group. Since all witnesses, including government witnesses, agreed that MOST pit bulls are good dogs who never bite anybody, punishing every owner is overbroad, ie, too far-reaching.
Vague: As shown in our decision from March 2007 and in our Remedy decision from July, 2007, the term pit bull terrier is unconstitutionally vague, since it doesnt describe a breed. Citizens have a right to know, clearly, whether they are violating a law or not.
Right to trial fairness: Section 19, struck in its entirety at Superior Court, allowed for an uncredentialed, anonymous vet to submit a certificate identifying a dog as a pit bull, which was to be receivable in evidence as proof that a dog is a pit bull without calling the vet to be sworn and examined.
Appeal: As above, plus by leaving in the substantially similar in physical appearance clause, the section naming banned dogs continues to be vague. The whole section should have been struck, and with it the amendments known as the pit bull ban.
Other errors based on Canadian constitutional law were also argued.
The burden of proof lies with both parties, since the government cross-appealed our original ruling. They must prove a rational basis since they are violating Section 7. of the Canadian Charter of Rights and have not produced a Section 1. justification for it. What this means is that before they can take away rights, they must have a very good reason for it and be able to prove it.
At the initial go-round, both sides called experts who submitted affidavits and were called for cross-examination.
On Appeal, the evidence remains the same unless the judges ask for more information. If they do, we are able to provide a lot of new evidence accumulated since the first go-round that will serve to further substantiate our case.
Hope that answers your question and I wish you werent so anonymous. :>)

Well, our system is supposed to be based on the "innocent until proven guilty" British system, but McSquinty, Bray-ant and the marauding minions have decided to implement "guilty just because we say so".
Yo, Anonymous, pick a nick.

I thought you had the English system which assumes guilt. I think the pain in my arms is causing my brain to slow down. LOL anyway your case sounds remarkably like any US case as far as rational basis is concerned. However, politics can easily override rational basis as we all know. of course i hope you win but if you dont, I know it wasnt because you didnt try.

Actually, the British system puts the burden of proof on the prosecution. The systems in Canada and the US are derived from the Brit system.
It is the French civil code which puts the burden of proof on the defense.
There are a couple of differences with our case from US cases. First, in Canada, we do not have property rights except as set in precedent and common law. So, that changes the argument somewhat, although dogs are considered chattels. Second, they plan to throw you in jail for owning a dog they think is a pit bull and violating the law. Therefore, the burden on the government becomes heavier, ie, they have a greater standard of proof re: rational basis. If I interpreted the Justices remarks correctly, they have failed to prove that or even to try.
We just have to wait and trust me, weve all been second-guessing constantly about whether we should have zigged when we zagged but we did our best and we do not plan to quit.
My attitude, especially toward people who enjoy bad-mouthing our efforts and our corporation yet have done absolutely NOTHING to participate or contribute, at least we got of our asses and tried.
And man, have we tried.

Further to the question of briefs, both sides filed a factum with the Court which contains our arguments that the lower court judge erred based on Canadian case law and original witness testimony and evidence.
The case number is in Clay Rubys press release, available at my post We go to the Court of Appeal on Monday, farther down the page.